Armstrong v. Goldblatt Tool Co., 59464

• Decision Date: 11 December 1987
• Docket Number: No. 59464,59464
• Citation: 747 P.2d 119,242 Kan. 164
• Parties: , 127 L.R.R.M. (BNA) 2198, 56 USLW 2423, 2 IER Cases 1490 Georgia ARMSTRONG, Appellant, v. GOLDBLATT TOOL COMPANY, Appellee.
• Court: Kansas Supreme Court

Page 119

747 P.2d 119

242 Kan. 164, 127 L.R.R.M. (BNA) 2198,

56 USLW 2423,

2 IER Cases 1490

Georgia ARMSTRONG, Appellant, v. GOLDBLATT TOOL COMPANY, Appellee.

No. 59464.

Supreme Court of Kansas.

Dec. 11, 1987.

Syllabus by the Court

1. No tort action for retaliatory discharge for filing a workers' compensation claim exists where the employee is adequately protected contractually from such discharge by a collective bargaining agreement.

2. The principle of law stated in Syllabus p 1 is not unconstitutional on the basis (1) that it denies unionized workers due process of law; (2) that it creates impermissible and irrational classifications of employees and employers; or (3) that it violates the First Amendment right of free association of organized workers.

David W. Hauber, of Boddington & Brown, Kansas City, argued the cause, and Kenneth J. Reilly, of the same firm, and James M. Sheeley, of Lugar, Harris, Lampson, Kunce & Sheeley, Kansas City, were with him on the briefs, for appellant.

Ronald C. Newman, of Mustain & Newman, Chartered, Kansas City, argued the cause, and J.D. Lysaught and Denise E. Tomasic, of the same firm, were with him on the briefs, for appellee.

John M. Ostrowski, of McCullough, Wareheim & LaBunker, Topeka, was on the brief amicus curiae for the Kansas AFL-CIO.

Douglas C. Beach, Overland Park, was on the brief amicus curiae for Southwest Forest Industries, Inc.

PRAGER, Chief Justice:

This case is before the court following the granting of a petition for review from an unpublished decision of the Kansas Court of Appeals filed on March 5, 1987. The appeal is from a summary judgment entered by the district court in which the court held that the plaintiff, Georgia Armstrong, an employee covered by a collective bargaining agreement, could not maintain a tort action against the defendant employer, Goldblatt Tool Company, for an alleged retaliatory discharge because the plaintiff had filed a workers' compensation claim.

Plaintiff, a member of the United Steelworkers of America, had been an employee of defendant Goldblatt Tool Company since 1967. The employment relationship was covered by a collective bargaining agreement between the union and the employer. The collective bargaining agreement provided, in substance, that an employee could be discharged only for just cause and further provided a grievance procedure to a discharged employee culminating in binding arbitration. The plaintiff never attempted to use the grievance procedure provided in the collective bargaining agreement.

Plaintiff was injured at work in June 1982 and filed a workers' compensation claim which was settled in August 1983. She testified that the personnel director of the company told her that she could not return to her former position or any other position with the company unless she received a lower disability rating. Plaintiff did not apply for other jobs at Goldblatt through the bidding procedures available to her under the contract, nor did she file a grievance under the specified contract procedure. Goldblatt maintained that plaintiff had never actually been discharged from her position. Plaintiff filed suit against defendant in Wyandotte County district court alleging that the defendant's refusal to allow her to return to her former job constituted a retaliatory discharge resulting from her filing the workers' compensation claim. The case was removed to the United States District Court for the District of Kansas and later remanded back to the Wyandotte County district court. The defendant employer then filed a motion for summary judgment. The trial court sustained defendant's motion for summary judgment, concluding that plaintiff's state tort action for retaliatory discharge was preempted by federal law and that plaintiff's claim should have been resolved through the grievance procedure contained in the collective bargaining agreement.

Plaintiff then appealed to the Court of Appeals. The Court of Appeals affirmed, concluding that the case was controlled by the recent decision of this court in Cox v. United Technologies, 240 Kan. 95, 727 P.2d 456 (1986), which held, in substance, that an action based on the tort of retaliatory discharge is not available to an employee whose employment relationship is governed by a collective bargaining agreement which prohibits discharge of an employee except for just cause and which provides a grievance procedure including binding arbitration. The Court of Appeals, in its opinion, noted that the facts in the instant case were not in dispute and that the only question before the court was whether the defendant was entitled to judgment as a matter of law.

In Cox, the plaintiff was discharged 13 days after he settled a workers' compensation claim with his employer's insurer, on the basis of his employer's claim that he failed to report to work following the conclusion of his workers' compensation claim. Cox's employment was covered by a collective bargaining agreement, which, as in the present case, contained the provision that an employee would not be terminated except for proper cause and also provided grievance procedures, including binding arbitration, for the resolution of disputes. Cox filed a grievance based upon his termination. The arbitrator restored Cox to his former position but did not award him back pay. Thereafter, Cox filed an action for retaliatory discharge against his employer, alleging that he was not allowed to return to work because he had filed a workers' compensation claim. On appeal, this court held that an employee, who is adequately protected contractually from discharge except for just cause by a collective bargaining agreement, does not have an independent action in tort for retaliatory discharge. The court, in Cox, refused to extend the right to bring an action in tort for retaliatory discharge, which was judicially recognized for employees at will in Murphy v. City of Topeka, 6 Kan.App.2d 488, 630 P.2d 186 (1981), to include an employee adequately protected by a collective bargaining agreement.

In reliance upon our holding in Cox, the Court of Appeals in this case held that the presence of an adequate grievance procedure in a collective bargaining agreement precludes the employee from bringing a retaliatory discharge action, even though the employee failed to pursue his or her contractual remedies. The plaintiff, while conceding the applicability of Cox, contended that the recognition of the right of an at-will employee to bring an action for retaliatory discharge for filing a workers' compensation claim, while denying the same right to bring such an action to an employee covered by a collective bargaining agreement, is unconstitutional as unjust discrimination against the rights of the employee covered by a collective bargaining agreement. The Court of Appeals summarily rejected this contention and held that the distinction made in Cox was constitutional. The Court of Appeals affirmed the granting of summary judgment to the defendant, holding that the sole remedy of plaintiff Armstrong was contained in the collective bargaining agreement and not in a common-law action for retaliatory discharge. The Supreme Court granted the plaintiff's petition for review.

There is no dispute between the parties in this case that our decision in Cox, if constitutional, denies to plaintiff Armstrong an independent cause of action in tort for retaliatory discharge where the collective bargaining agreement, as in this case, prohibits her discharge except for just cause and provides an appropriate grievance procedure. The plaintiff urges us to overrule our holding in Cox on the basis of public policy. We have considered the arguments of the plaintiff in this regard and have concluded on public policy considerations that our decision in Cox should stand. The majority of the court has determined that the legal principles and rationale set forth in Cox should be adhered to and should be applied in this case to bar plaintiff Armstrong from bringing a cause of action in tort for retaliatory discharge. In Cox, we noted that the Court of Appeals in Murphy v. City of Topeka, 6 Kan.App.2d 488, 630 P.2d 186, recognized an action could be brought by an employee at will for retaliatory discharge for filing a workers' compensation claim. We noted that there is a strong public policy underlying the Workers' Compensation Act (K.S.A. 44-501 et seq.) which favors the worker's right to avail himself, or herself, of the benefits arising therefrom. We stated that, because an employee at will may be discharged with or without cause and because an unscrupulous employer could subvert this public policy by placing the employee at will in the position of having to choose between filing a workers' compensation claim or keeping his or her employment, an independent action for retaliatory discharge should be judicially created to provide a remedy for a class of employees having no contractual remedy.

In Cox, we stated without equivocation that a discharge predicated upon an employee having exercised his right to file a workers' compensation claim would not constitute "proper cause." We considered a number of cases from other jurisdictions, both pro and con on the issue, and concluded that an employee covered by a collective bargaining agreement permitting discharge only for just cause and providing an adequate grievance procedure is adequately protected from retaliatory discharge. We concluded that the public policy of Kansas does not require that the tort of retaliatory discharge for filing a workers' compensation claim recognized for employees at will be extended to employees fully covered and protected by a collective bargaining agreement. Justice Harold S. Herd dissented.

In adopting the rule set forth in Cox, the court reasoned that it was obligated to take into consideration the strong public policy which takes into account the right of parties to enter into contracts...